- (1.) In this writ petition, Petitioner has challenged the order dated 07.06.2005 passed in Revenue Misc. Petition No. 62 of 1993/94, by the Commissioner, Dumka (Annexure 6); the order dated 11.8.2010 passed in R.M.A. Case No. 144 of 1988-89 by Respondent No. 3 - Deputy Commissioner, Dumka (Annexure 7) affirming the order dated 06.09.1988 (Annexure 4) passed by the Respondent No. 4 - Sub-Divisional Officer, Dumka directing the Petitioner to remove the alleged encroachment.
(2.) Mr. Anil Kumar, learned Counsel appearing for the Petitioner submitted that a proceeding under the Bihar Public Land Encroachment Act ('B.P.L.E. Act' for short) was started against the father of the Petitioner being Encroachment Case No. 1 of 1954-55 which was dropped on 17.07.1955 as no encroachment was found. Thereafter one Ainul Haque and another filed suit against the predecessor-in-interest of the Petitioner, claiming the land in question, along with other lands, which was decreed on compromise. On the basis of a purported encroachment report made by the L.R.D.C. to the S.D.O., an encroachment case being E. E. Case No. 45 of 1987-88 was initiated, in which by the aforesaid order dated 06.09.1988 (Annexure 4) Petitioner was directed to remove the alleged encroachment. Against that order, Petitioner filed appeal being Revenue Misc. Appeal No. 144 of 1988-89 which was disposed of by order dated 28.08.1992 (Annexure 5) holding inter alia that the Petitioner has been in continuous possession of the land in question since at least 15.04.1954 and thus he acquired title by adverse possession on the land. He further submitted that though there was/is no provision, for second appeal under the B.P.L.E. Act, but the State filed a petition which was registered as Revenue Misc. Petition No. 62 of 1993-94 before the Commissioner, Dumka who remanded the matter to the Deputy Commissioner, Dumka by order dated 07.06.2005 (Annexure 6) for passing a fresh order after hearing the parties. Thereafter, the Deputy Commissioner has passed the impugned order on 11.08.2010 (Annexure 7) asking the Petitioner to remove the alleged encroachment. He submitted that in the facts and circumstances indicated above, the impugned orders are liable to be set aside.
(3.) On the other hand, Mr. Srijit Choudhary, learned Counsel for the State submitted that in view of Rule 3 of the Bihar Board Miscellaneous Rules, 1958, ('B.B.M. Rule' for short) the Commissioner had power to pass Annexure 6 order. He relied on the judgment reported in , Bibi Khairun Nisa v. The State of Bihar etc, 1965 AIR(Pat) 382. He also relied on the judgment reported in , Srikrishnapuri Boring Road Vyapari Sangh etc v. State of Bihar etc, 1995 AIR(Pat) 113 . and submitted that this Court should not interfere in the matter of removing encroachment.;